R v Mackay

Case [2018] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mackay [2018] QCA 313

PARTIES:

R
v
MACKAY, Matthew Kevin
(appellant)

FILE NO/S:

CA No 158 of 2018
DC No 2585 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 6 June 2018 (Jarro DCJ)

DELIVERED ON:

Date of Orders: 11 September 2018
Date of Publication of Reasons: 13 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2018

JUDGES:

Holmes CJ and Philippides JA and Henry J

ORDERS:

Orders delivered 11 September 2018:

1.   Appeal against conviction allowed.

2.   Acquittal verdict entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted of one count of assault occasioning bodily harm arising from an incident where the complainant was “sucker-punched” at a nightclub he attended with two of his friends and his brother-in-law – where the central issue at trial was the identity of the assailant – where the complainant gave evidence that he saw men “hassling” his brother-in-law and that he recognised one of the men from the gym and tapped him on the shoulder and that he was then “sucker-punched” on his right cheek from the side by another man – where the complainant gave evidence that the assailant was someone who he had seen on numerous occasions at the gym but not previously spoken to and had seen on Facebook as “Matty A” – where the evidence included a prior inconsistent statement by the complainant of the colour of the t-shirt worn by the person who attacked him – where in the complainant’s statement to police he described the person who attacked him as having blonde hair but it was common ground at trial the appellant had dark hair – where CCTV footage of the complainant being punched was obscured, not the focus of the camera shot, and in black and white – where the prosecution invited the jury to resolve the case based on the CCTV footage and the trial judge failed to warn the jury that it would be dangerous for them to do so – whether the verdict was unreasonable or cannot be supported having regard to the evidence – whether the verdict should be set aside and a verdict of acquittal be entered

Criminal Code (Qld), s 668E

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
Douglass v The Queen (2012) 86 ALJR 1068; [2012] HCA 34, applied
GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v…

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R v Mackay [2018] QCA 313
Case
[2018] QCA 313
Decision Date

CaseChat Overview and Summary

In the case of R v Mackay, the appellant was convicted of assault occasioning bodily harm following an incident at a nightclub. The core issue in the trial was the identification of the assailant. The complainant testified that he witnessed a group of men hassling his brother-in-law and recognised one of the men from the gym. He claimed to have tapped this person on the shoulder and was then struck by another man, referred to as “Matty A” based on the complainant's Facebook profile. The complainant further testified that he had seen the assailant at the gym multiple times and clubs, but had never spoken to him. The central issue in the appeal was whether the jury's verdict was unreasonable or unsustainable given the evidence presented.

The legal issues addressed by the court involved the standard for assessing the reasonableness of a jury's verdict in light of the evidence. The court had to determine if the jury's verdict could be considered reasonable and if it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the assailant. The court examined the reliability of the complainant's identification and whether there were significant discrepancies or inadequacies in the evidence that would warrant setting aside the verdict. This included evaluating the complainant's prior inconsistent statement regarding the assailant's appearance and the quality of the CCTV footage, which was obscured and in black and white.

The court concluded that the identification of the appellant as the assailant was unreliable due to discrepancies in the complainant's testimony and the poor quality of the CCTV footage. The court noted that the trial judge did not warn the jury of the dangers in relying on the CCTV footage. Given these factors, the court found that there was a significant possibility that an innocent person had been convicted, leading to the conclusion that the verdict was unreasonable. Consequently, the appeal against the conviction was allowed, and a verdict of acquittal was entered.

Orders

Orders of the court

Orders delivered 11 September 2018:

1. Appeal against conviction allowed.

2. Acquittal verdict entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 11 September 2018, the appellant’s appeal against conviction was heard by this Court, which allowed the appeal against conviction on the basis of ground 1 and ordered that an acquittal verdict be entered with reasons to be published. These are my reasons for joining in those orders.The evidenceThe complainant’s evidence The complainant gave evidence that on Saturday 24 September 2016 he went out drinking with friends and his brother-in-law, Mr Henao. He had been drinking before going out. He had been to one nightclub before arriving at Blackbirds nightclub.[2] He said that at that nightclub he “noticed that there were a few guys that were hassling [his] brother‑in‑law”.[3] The complainant said that he had recognised one of the men as being “Amin”, who he knew from the gym. He went over and in a friendly manner tapped that person on the shoulder. The man reacted by telling him not to touch him. The complainant told him to relax and tapped him again. He said he was then “sucker-punched” on his right cheek from the side.[4] The complainant said that he had not seen the punch coming, but was able to see who punched him “moments after the incident had happened”[5] before the person ran off into the crowd.[2]AB2 at 37.[3]AB2 at 38.08-38.18.[4]AB2 at 38.25 and AB2 at 38.28-38.29.[5]AB2 at 39.08-39.09. The complainant gave evidence that the assailant was Matty Mackay, who he also referred to as “Matty A”, a person he recognised from the same gym he went to.[6] The complainant said he came to know that his nickname was “Matty A” from Facebook. He said he had first accessed the Facebook profile before the incident.[7] The complainant described the assailant as Caucasian with tattoos and wearing a dark shirt. He said he had seen him at the gym over 50 times as well as at clubs and bars,[8] but had not spoken to him previously.[9][6]AB2 at 38.31-38.42. The name “Matty Aye” is referred to in parts of the transcript while in other parts it is recorded as “Matty A”. The references are to the same individual.[7]AB2 at 39.46-40.01.[8]AB2 at 39.35 and 39.37.[9]AB2 at 39.39-39.45. The complainant was shown the CCTV footage taken from the bar area at the time of the incident and identified both himself and his brother-in-law in the footage. The complainant was not asked to point out on the CCTV footage:·the man he claimed to identify as “Matty A”;·the man he claimed to identify as “Amin”;·the incident where he claimed to have tapped “Amin” twice on the shoulder;·the moment when he was struck;·the direction from which he was struck; or·the person who he said delivered the blow. The complainant was cross examined about his police statement made on 27 September 2016, two days after the assault. The complainant agreed that in the statement he had endeavoured to give police all the details he could. The complainant agreed that in that statement he had referred to a man named “Mehran” as well as a man named “Amin” as both present. The complainant was asked why there was no mention of the name “Matty A” or Matt Mackay in his statement. The complainant answered variously that it was because “that was… a different assault altogether”, that he “was running through who was there at the time”[10] and claimed that the description, given in his police statement, of the person who assaulted him, as being “Caucasian, white shirt with tattoo, blonde hair”, was a reference to “Matty A”.[11] It was common ground at trial that the appellant had dark hair.[12][10]AB2 at 46.10-46.15.[11]AB2 at 46.34 and 47.05.[12]AB1 at 45.10-45.11.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The approach of an appellate court where such a ground is raised may be summarised having regard to the High Court authorities as follows:[43]1.The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen[44] and MFA v The Queen.[45]2.Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way: R v Baden‑Clay.[46]3.In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.[47]4.If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence: M v The Queen[48] and MFA v The Queen.[49]5.The ultimate question for the appellate court must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v Baden‑Clay.[50] In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen[51] and SKA v The Queen.[52] In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.[53][43]R v TAI [2018] QCA 282 at [37].[44](1994) 181 CLR 487 at 493.[45](2002) 213 CLR 606 at 615.[46](2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ. See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.[47](2002) 213 CLR 606 at 623.[48](1994) 181 CLR 487 at 494-495.[49](2002) 213 CLR 606 at 623.[50](2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ. See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.[51](1987) 163 CLR 454 at 473.[52](2011) 243 CLR 400 at 406.[53](2017) 91 ALJR 698 at [25].Consideration The critical issue in this case concerned the reliability of the identification of the appellant assailant. The matter that the jury had to be satisfied beyond reasonable doubt about was that the appellant referred to by the complainant as “Matty A” was not only present but also was the person who, in fact, punched the complainant.